In this case, the city initiated the
minor boundary change proceeding after receiving property owner consents from
nearly all of the property owners in the affected territory. The city
initially stated that it was proceeding on a "double majority" basis,
but later switched its justification to the "triple majority" basis.
On review, petitioners contend that the original calculation of property owner
consent referenced in the initiating resolution was binding and insufficient to
allow the resolution, and that the commission's order was void because its
proceedings were started improperly. Petitioners further assert that the
commission denied them procedural rights by changing the method for calculating
property owner support for the city's initiating resolution after the close of
the public hearing and that the commission did not make findings in the record
about how the annexation complied with statewide land use planning goals. We
review for errors of law, ORS 183.482(8), and affirm.

We begin with a brief summary of
processes used by the boundary commission to approve city annexations. For
many years, boundary commissions in the Portland metropolitan area, Marion
County, and Lane County decided major and minor boundary changes. A
"major boundary change" was "formation, merger, consolidation or
dissolution of a city or district." ORS 199.415(11). A "minor
boundary change" was an "annexation, withdrawal or transfer of
territory to or from a city or district or a transfer of territory from a
city-county to a city." ORS 199.415(12).

The manner of initiating a boundary
change differed depending on whether it was a minor or major boundary change. Compare
ORS 199.476 - 199.485 (initiation of major boundary change), with ORS
199.487 and ORS 199.490 (initiation of minor boundary change). Under ORS
199.490(1), certain minor boundary changes, including annexations, could be
initiated by resolution of the affected city or district. However, in order
for an annexation to be initiated by a city council resolution, ORS 199.490
required that the annexation be supported by property owners and/or electors in
the territory to be annexed--i.e., that they consent in writing. That
statute provided, in part:

"(2)(a)(A) An annexation proceeding may
also be initiated by a resolution adopted by the governing body of the affected
city or district upon receiving consent to annex their land in writing from
more than half of the owners of land in the territory proposed to be annexed,
who also own more than half of the land in the territory proposed to be annexed
and of real property therein representing more than half of the assessed value
of real property in the territory proposed to be annexed.

"(B) A resolution adopted by the governing
body of the affected city or district upon receiving written consent to
annexation from a majority of the electors registered in the territory proposed
to be annexed and written consent to the annexation of their land from the
owners of more than half the land in the territory proposed to be
annexed."

In short, a city council resolution for an annexation could
be initiated in either of two ways: (1) under ORS 199.490(2)(a)(A) by a
"triple majority" consent of property owners or (2) under ORS
199.490(2)(a)(B) by a "double majority" consent of property owners
and electors.

On June 18, 2007, the city adopted a
resolution initiating annexation of the Fawn Ridge Subdivision. The city had
received consents from 40 of the 43 affected property owners, representing 96
percent of the annexation area (excluding streets), and 98 percent of the
assessed value of the territory to be annexed. The resolution made findings of
compliance with relevant land use standards and directed the filing of the
resolution and "certified copies of the statements of consent" with
the commission. The findings in the resolution referred to the consents as
justifying initiation of the minor boundary change under ORS 199.490(2)(a)(B),
the "double majority" consent. The reference to "double
majority" consent--which required consent of electors--would later prove
controversial because, although a few of the lots in the annexation territory
were improved, there were no resident electors in the territory. Nonetheless,
the city then filed an annexation application with the commission on July 3,
2007, and again indicated, this time on an application check sheet, that the
annexation resolution was authorized by a "double majority" consent
to the annexation.

The commission considered the
annexation at a public hearing on August 2, 2007. Petitioners presented
written and oral testimony regarding the proposal, specifically noting that the
"double majority" consent described in ORS 199.490(2)(a)(B) required
a majority of the electors in a territory to consent in writing, but that the
territory subject to this annexation contained no registered electors.
Petitioners asserted that the "double majority" method for tallying
consents did not apply and that the proceedings were started improperly. At
the end of that hearing, the commission directed staff to obtain legal advice
on how to proceed, given the mistaken identification of the type of consents.
The public hearing was closed, and a special meeting was scheduled for
September 27 to deliberate on the annexation.

At the September 27 meeting, the commission
issued its final order approving the annexation. That order provides:

"WHEREAS, Resolution No. 8, Series 2007, by
the city of Florence was filed on July 3, 2007- in accordance with ORS
199.490(2)(a)-- for annexation of territory to the City of Florence,
described in attached Exhibit A and shown on attached map Exhibit B; and,

"WHEREAS, the commission duly published
notice of the public hearing in accordance with ORS 199.463 and in accordance
with the rules of the commission and ORS 199.452(1), conducted a public hearing
on August 2, 2007, and deliberated on September 27, 2007; and,

"WHEREAS, on the basis of the study of the
proposal, which considered economic, demographic and sociological trends and
physical development of the land including the applicable comprehensive plan,
and of the public hearing, the commission approved the proposal and made the
findings and reasons attached as Exhibit C.

"NOW THEREFORE IT IS ORDERED: That the area
described be a part of the city of Florence."

(Emphasis added.) Exhibit C, attached to that order, includes
the following findings:

"1. This
proposal was initiated with the boundary commission by the City of Florence after
receiving the necessary consents on July 3, 2007, in accordance with ORS
199.490(2)(a)(A). The proposal was found to be a valid filing under OAR
191-006.

"2. Consents
were received by the City of Florence representing more than half the owners of
the land in the territory to be annexed, who own more than half the land, and
the real property represents more than half of the assessed value of all the
property in the territory to be annexed."

(Emphasis added.) The referenced exhibit details how the
annexation will meet the policy considerations and "purposes"
outlined in ORS 199.410. Finally, the exhibit lists "reasons" for
the annexation, including that the "proposal was supported by the City of
Florence and the owners of the properties proposed for annexation" and was
"consistent with the LCDC acknowledged comprehensive plans." Neither
the final order nor the attached exhibits discuss the statewide land use
planning goals (goals).

Petitioners advance procedural claims
of error that fall into two camps. First, petitioners make a number of
assertions about the change in identifying the consents supporting the city
resolution, a change from a "double majority" consent identified in
the city resolution to a "triple majority" consent determined under
the commission annexation order. We address those arguments together. Second,
petitioners argue that the commission failed to make required findings that the
annexation complied with the goals.

We turn first to petitioners claim
that the city was required to file a notice of intent to annex that identified
the particular type of annexation consent being sought before the city
solicited written consents to the annexation. ORS 199.490(2)(b), which sets
out procedural requirements for the city to adopt an annexation resolution,
provides:

"However, beforesoliciting
statements of consent for the purpose of authorizing an annexation under a
proceeding initiated as provided by this subsection, the governing body of the
affected city or district shall file a notice of intent to annex with the
boundary commission having jurisdiction of the affected territory. The notice
of intent to annex shall name the affected city or district and generally
describe the boundaries of the territory sought to be annexed, which territory
must be contiguous to the city or district or separated from it only by a
public right of way or a stream, bay, lake or other body of water. The notice
of intent to annex shall have attached to it a county assessor's cadastral map
showing the location of the affected territory that the city or district
proposes to annex."

Thus, the statute sets out a number of requirements for the
notice of intent, none of which directs that the notice identify the annexation
consents as calculated under the "double majority" or "triple
majority" method. Here, the city "file[d] a notice of intent to
annex" that "name[d] the affected city * * * and generally
describe[d] the boundaries of the territory," and met the other statutory
requirements. ORS 199.490(2)(b). There is no merit to petitioners' claim that
the notice of intent to annex was defective.

The city then obtained signatures
from landowners in the territory to be annexed that the city believed met the
two "double majority" consent requirements: consent from the owners
of more than half the land, and zero consents from half of no registered
electors (i.e., zero divided by two is zero). ORS 199.490(2)(a)(B).
The consents, in any event, were more than sufficient to meet the "triple
majority" requirements of ORS 199.490(2)(a)(A). However, a finding in the
city's resolution initiating the minor boundary change process described the
initiation as "authorized by ORS 199.402(2)(a)(B)."

Petitioners next contend that the
commission was deprived of authority to accept the initiating resolution as
supported by a "triple majority" of property owners because the
city's annexation resolution stated that initiation was authorized under ORS
199.402(2)(a)(B). Petitioners argue that the commission's authority to approve
the annexation is contingent on the city making a resolution submitting that
particular type of annexation to the commission before the public hearing.
Respondents contend that the commission's authority to approve a "triple
majority" annexation is not contingent on the city filing a resolution
that accurately identifies the type of consents relied on. In the alternative,
respondents also contend that, even if the commission erred, the error did not
impair the fairness or correctness of the annexation, and so any error was
harmless.

We have already decided that the city
was not required to identify the annexation consents calculation method in the
initiating resolution. Under the plain terms of ORS 199.490(2)(a), the
sufficiency of a resolution initiating an annexation depends on whether the
city had received sufficient consents as a matter of fact. Because the city
had received sufficient consents, the minor boundary change was properly
started under ORS 199.490, and the commission did not err in so concluding.

Moreover, there is nothing in the
approval criteria for a minor boundary change that links that approval to the
correctness of findings in a city resolution initiating annexation. The
commission applied ORS 199.462(1) to evaluate the minor boundary change. That
statute provides:

"In order to carry out the purposes
described by ORS 199.410 when reviewing a petition for a boundary change * * *,
a boundary commission shall consider local comprehensive planning for the area,
economic, demographic and sociological trends and projections pertinent to the
proposal, past and prospective physical development of land that would directly
or indirectly be affected by the proposed boundary change * * * and the goals
adopted under ORS 197.255."

Nothing in that statute suggests that the commission is
required to consider whether the annexation was initiated using a particular
consent method as part of its approval process or that accepting an initiating
resolution after a change for "triple majority" to "double
majority" consents would be in error.

Similarly, ORS 199.461(4) describes
the record for approval or disapproval of a boundary change petition:

On the basis of the study and on the
basis of the facts presented at the hearing, the boundary commission shall
approve the proposed boundary change * * * as presented or as modified by
the commission or disapprove the proposed change, by an order stating the
reasons for the decision of the commission."

(Emphasis added.) Here, too, the statute does not limit the
commission's authority to accept an initiating resolution when there is an incorrect
finding on the type of consents received. The commission uses the
"facts" presented at the hearing, which may include the procedural
facts, as one basis for approving or disapproving the annexation. Given the
commission's power to modify a proposal before approval and those statutory
directives to review and approve a proposal based on specific substantive
criteria, we find no basis to conclude that the commission lacks authority to
approve an annexation under ORS 199.490(2)(a)(A) simply because of an incorrect
finding in an initiating resolution. The commission did not err as a matter of
law in approving the annexation. Accordingly, we affirm as to those
assignments of error.

Next, petitioners argue that the
commission failed to consider and make findings regarding whether the proposed
annexation complied with the statewide planning goals as required by ORS
199.462(1) and OAR 191-030-0020(25). Respondents agree that the commission's
final order must comply with the goals, but argue that the commission met that
requirement by finding that the annexation complied with the city's
acknowledged comprehensive plan.

As noted earlier, ORS 199.462(1)
requires that, "[i]n order to carry out the purposes described by ORS
199.410," a "boundary commission shall consider local comprehensive
planning * * * and the goals adopted under ORS 197.225" in making a
boundary change. OAR 191-030-0020(25), a rule adopted by the commission, also
regulates the findings required to approve a proposed boundary change. It provides:

"To adopt a final order approving a
boundary change proposal, the Commission must find that the proposal complies
with the statewide planning goals and is consistent with the applicable
acknowledged comprehensive plans and land use regulations as provided in the
Commission's State Agency Coordination (SAC) Program, which is hereby adopted
by reference. Failure of the proposal to be found in compliance with the
statewide planning goals or to be consistent with the acknowledged
comprehensive plan and land use regulations will result in denial of the
proposal by the Commission."

(Emphasis added.) Under both the statute and rule, then, the
commission is required to consider how the proposed annexation complies with
the goals in making a boundary change.

Other policies temper the goal
consistency requirement. ORS 199.462(1) requires the commission to consider
the goals "in order to carry out the purpose described by ORS 199.410."
(Emphasis added.) ORS 199.410 sets out the general policy for local
government boundary commissions and provides that one of the purposes of the
boundary commission statutes is to

"[p]rovide that boundary determinations are consistent
with acknowledged local comprehensive plans and are, in conformance with
statewide planning goals. In making boundary determinations the commission
shall first consider the acknowledged comprehensive plan * * *. Only when
the acknowledged local comprehensive plan provides inadequate policy direction
shall the commission consider the statewide planning goals."

ORS 199.410(3)(d) (emphasis added).(3)
Thus, ORS 199.462(1)--the statute that requires goal consistency for approval
of boundary changes--requires the commission to consider the goals in order
to carry out the purposes listed in ORS 199.410, which in turn states that
the commission should consider the goals only when the acknowledged
comprehensive plan does not provide adequate policy direction.

Similarly, another administrative
rule of the commission rounds out the goal consistency requirement of OAR
191-030-0020(25). OAR 191-005-0060 requires that a boundary commission and
staff must make a study of a boundary change proposal, including an
annexation. That rule provides, in relevant part:

"[T]he study shall consider state planning goals, and
county, city, and other applicable plans and policies (ORS 199.410). When
considering a boundary change in an area for which there is an acknowledged
comprehensive plan, the Commission shall consider the acknowledged plan and does
not have to address statewide goals."

OAR 191-005-0060 (emphasis added). Both rules, read in context,
reflect the same policy as ORS 199.462 and ORS 199.410, namely, that the
acknowledged local comprehensive plan itself addresses the application of the
goals to the annexation and further goal findings are necessary only where the
plan is inadequate or does not address the area to be annexed.

The commission made findings that
applicable policies in the relevant comprehensive plan supported the
annexation. Those findings suffice to comply with ORS 199.462(1) and the
relevant administrative rules. The commission found that "[t]he
annexation area was within the urban growth boundary of the acknowledged 1988
Florence Comprehensive Plan and 2020 Realization Comprehensive Plan," and
that the annexation "assisted in fulfilling the comprehensive plans policies
of annexing out to the urban growth boundary." The commission also found
that the "existing and proposed uses were consistent with the long-range
plan for the area and fulfilled the growth policies in the comprehensive plan
and in Oregon law." Petitioners do not argue that the acknowledged
comprehensive plan was inadequate to provide standards for the annexation or
that the annexation was inconsistent with those plan standards. In light of
the commission's findings that the annexation complied with the acknowledged
comprehensive plan and Oregon law, no further findings addressing state land
use goals were necessary for approval of the boundary change.

Finally, petitioners claim that the
boundary commission erred in approving an unreasonable annexation under the
common-law standard for reasonable annexations announced in Portland General
Electric Co. v. City of Estacada, 194 Or 145, 159, 241 P2d 1129 (1952). We
reiterated in Morsman v. City of Madras, 191 Or App 149, 153-54, 81 P3d
711 (2003), that the requirement for reasonable annexations is assessed using
specific legislative and regulatory criteria for annexation approvals, rather
than through unguided judicial concepts of order or fairness. We continue to
hold that view and reject, without further discussion, petitioners' claims
about the substantive merits of the annexation.

Affirmed.

1.See ORS
199.460 (jurisdiction of commission over boundary changes); ORS 199.415(4)
(definition of "boundary change" as "a major or minor boundary
change"); ORS 199.415(12) ("minor boundary change" as including
"annexation * * * of territory to * * * a city"). The Lane County
Boundary Commission was abolished by the 2007 Oregon Legislative Assembly. Or
Laws 2007, ch 239, §§ 1 - 7, 16. The boundary change at issue was adopted
before July 1, 2008, the effective date of that law. All references to
provisions of ORS chapter 199 in this opinion refer to the 2007 versions of the
statutes that were in effect when the annexation was approved by the
commission.

1.Petitioners had
the opportunity at the boundary commission hearing on the minor boundary change
to argue and present evidence on the question of whether the annexation
resolution was, in fact, supported by sufficient consents. Petitioners did not
argue that the signatures were insufficient; they argued only that, as a matter
of law, an annexation labeled by the city as supported by a "double
majority" consent could not be approved as supported by a "triple
majority" of property owners. Accordingly, we do not agree with
petitioners that they were entitled to any additional notice or that their
rights were prejudiced when the commission approved the annexation as supported
by a "triple majority" of property owners.

3.The Land
Conservation and Development Department (LCDC) rules provide that an "'Acknowledgment
of Compliance' is an order of the Commission issued pursuant to ORS 197.251(1)
that certifies that a comprehensive plan and land use regulation, land use
regulations or plan or regulation amendment conforms with the Goals."
OAR 660-003-0005 (emphasis added). An acknowledged comprehensive plan is one
that was found by the LCDC to be in compliance with the statewide goals.